Citation Nr: 0830480
Decision Date: 09/09/08 Archive Date: 09/16/08
DOCKET NO. 06-28 605 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Whether there was clear and unmistakable error (CUE) in a
September 1991 Board of Veterans' Appeals (Board) decision
which denied service connection for an acquired psychiatric
disorder.
REPRESENTATION
Veteran represented by: Kenneth M. Carpenter, Attorney
at Law
ATTORNEY FOR THE BOARD
Christopher McEntee, Associate Counsel
INTRODUCTION
The veteran had active service from June 1968 to March 1970.
This matter comes before the Board on motion by the moving
party alleging CUE in a Board decision dated in September
1991.
FINDINGS OF FACT
1. In a September 1991 decision, the Board denied service
connection for an acquired psychiatric disorder.
2. It is not shown that the correct facts were not before
the Board or that the statutory or regulatory provisions
extant at that time were incorrectly applied in the Board's
September 1991 decision.
CONCLUSION OF LAW
The September 1991 Board decision denying service connection
for an acquired psychiatric disorder was not clearly and
unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38
C.F.R. §§ 20.1400-20.1411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
The Board notes that the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law in November 2000 and subsequently codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002). Regulations implementing the VCAA are codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007).
Specifically, the Act and the implementing regulations
contain provisions relating to VA's duties to notify and
assist a claimant.
The Court of Appeals for Veterans Claims (Court) has held
that reversal or revision of prior decisions due to CUE is
not a claim but a collateral attack on a prior decision.
Thus, one requesting such reversal or revision is not a
claimant within the meaning of the VCAA and consequently, the
notice and development provisions of the VCAA do not apply in
CUE adjudications. See Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
II. The Merits of the Motion for a Finding of CUE
The veteran claims that the Board committed CUE in September
1991 in its decision denying service connection for a
psychiatric disorder. The veteran argues that service
connection should have been awarded then on a direct basis
under 38 C.F.R. § 3.303, or alternatively, on a presumptive
basis under 38 C.F.R. §§ 3.307, 3.309. In the September 1991
Board decision, the Board found service connection
unwarranted because it found that, in September 1991, the
medical evidence of record did not indicate that the veteran
had a current acquired psychiatric disorder. See Brammer v.
Derwinski, 3 Vet. App. 223 (1992) ("Congress specifically
limits entitlement for service-connected disease or injury to
cases where such incidents have resulted in a disability. . .
In the absence of proof of a present disability there can be
no valid claim.").
Motions for review of prior Board decisions on the grounds of
CUE are adjudicated pursuant to the Board's Rules of Practice
at 38 C.F.R. §§ 20.1400-20.1411. The motion alleging CUE in
a prior Board decision must set forth clearly and
specifically the alleged errors of fact or law in the Board
decision, the legal or factual basis for such allegations,
and why the result would have been different but for the
alleged error. 38 C.F.R. § 20.1404(b).
In the implementing regulation, CUE is defined as a very
specific and rare kind of error, of fact or law, that when
called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error. Generally, either the correct facts, as they were
known at the time, were not before the Board, or the
statutory and regulatory provisions extant at the time were
incorrectly applied. 38 C.F.R. § 20.1403(a).
A determination of CUE in a prior Board decision must be
based on the record and the law that existed when that
decision was made. 38 C.F.R. § 20.1403(b)(1). To warrant
revision of a Board decision on the grounds of CUE, there
must have been an error in the Board's adjudication of the
appeal which, had it not been made, would have manifestly
changed the outcome when it was made. If it is not
absolutely clear that a different result would have ensued,
the error complained of cannot be CUE. 38 C.F.R. §
20.1403(c).
Examples of situations that are not CUE are: (1) a new
medical diagnosis that "corrects" an earlier diagnosis
considered in a Board decision. (2) The Secretary's failure
to fulfill the duty to assist. (3) A disagreement as to how
the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d).
CUE does not include the otherwise correct application of a
statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of
the statute or regulation. 38 C.F.R. § 20.1403(e).
In other cases prior to promulgation of this regulation, the
U. S. Court of Appeals for Veterans Claims (Court) has
defined CUE as an administrative failure to apply the correct
statutory and regulatory provisions to the correct and
relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App.
370, 372 (1991).
The Court has also held that a finding that there was such
error "must be based on the record and the law that existed
at the time of the prior . . . decision." Russell v.
Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently
developed evidence may not be considered in determining
whether error existed in the prior decision. Porter v.
Brown, 5 Vet. App. 233, 235-36 (1993).
The mere misinterpretation of facts does not constitute CUE.
Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).
Moreover, the error must be one that would have manifestly
changed the outcome at the time that it was made. Kinnaman
v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of
error, of fact or of law, that when called to the attention
of later reviewers, compels the conclusion, to which
reasonable minds cannot differ, that the results would have
been manifestly different but for the error." Fugo v.
Brown, 6 Vet. App. 40, 43 (1993).
The "benefit of the doubt" rule of 38 U.S.C.A. 5107(b) does
not apply to a Board decision on a motion to revise a Board
decision due to CUE. 38 C.F.R. § 20.1411(a).
In this matter, the medical evidence available to the Board
in September 1991 consisted of service medical records, a
report of medical examination conducted for the veteran's
reserve duty in 1971, and a November 1990 VA compensation
examination report.
Service medical records include the veteran's June 1968
entrance report of medical examination which is negative for
a psychiatric disorder; the veteran's June 1968 report of
medical history, which claims dizziness or fainting spells,
shortness of breath, pain or pressure in chest, palpitation
or pounding heart, and frequent or terrifying nightmares;
November 1968 treatment notes containing impressions of
borderline schizophrenia, inadequate and immature
personality, and drug overdose, and reflecting the veteran's
admission to a "neuropsychiatric clinic"; a December 1968
discharge note which rendered a diagnosis of passive-
aggressive disorder, which found the veteran neurologically
within normal limits, which recommended a return to full
duty, and which recommended separation for a personality
disorder "without further recourse to psychiatric evaluation
or hospitalization" if return to duty is "to no avail."
The service medical records also include a January 1969
Medical Board Report which noted inpatient treatment from
December 1968 to January 1969 with prescription of Librium,
which noted a diagnosis of depressive reaction, chronic,
manifested by insomnia, anorexia, decreased concentration,
and a suicidal attempt, and which found the diagnosed
disorder to be "not incurred in line of duty"; a January
1969 order from the Chief of Naval Personnel ordering the
veteran to be retained in service in limited duty status; a
June 1969 "Re-evaluation" by the Medical Board which
diagnosed the veteran with depressive reaction (resolved),
which noted that the disorder had been "incurred in line of
duty", which noted that the disorder "did not exist prior
to entry in service", which noted the veteran with a
passive-aggressive personality, mild, which found that the
veteran's "depression has progressively improved" and that
"he has not had a return of his previous symptoms of
depression", and which found the veteran fit for duty, and
recommended that he be returned to full duty status; a
February 1970 separation report of medical examination that
notes the in-service treatment for "depressive reaction",
but states "no sequelae at present[,]" and otherwise notes
the veteran as normal from a psychiatric standpoint; a
November 1971 reserve duty report of medical examination that
found the veteran normal from a psychiatric standpoint; and a
November 1971 report of medical history which notes, under
the physician's summary, "depressive reaction - inability to
live aboard ship - no comp. or sequelae."
The earliest medical evidence dated after the November 1971
reserve examination report is found in the November 1990 VA
report. The VA examiner found the veteran "depressed" as a
result of his "current reality situation." But the
examiner ruled out a "psychiatric disorder."
Based on this evidence, the Board found in its September 1991
decision that - the evidence did not indicate that the
veteran had a chronic disorder during service and the
evidence did not indicate that the veteran had a current
psychiatric disorder in September 1991.
The veteran has argued many times since 1991 that the medical
evidence is mixed with regard to whether he had chronic
psychiatric disorder in service, and whether he had a
psychiatric disorder at the time of the September 1991
decision. Indeed, the veteran was clearly treated for
depression in service, and was diagnosed with depression in
service. But, his depressive disorder was deemed resolved in
a later Medical Board Report, and he was found to be without
a depressive disorder in his 1970 separation examination and
his 1971 reserve examination. Likewise, the November 1990 VA
examiner found the veteran depressed, but, in the same
report, the examiner ruled out a psychiatric disorder. The
veteran maintains that, based on this inconsistency in the
medical evidence, the Board committed CUE in denying his
service connection claim for an acquired psychiatric
disorder.
After reviewing the law as it existed in September 1991, and
the medical evidence of record in September 1991, the Board
finds that it was not CUE for the Board to conclude in
September 1991 that the criteria for service connection for
an acquired psychiatric disorder had not been met.
Under the law at the time of the September 1991 Board
decision, service connection could be granted for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation of a preexisting
injury suffered or disease contracted in the line of duty, in
the active military, naval, or air service. 38 U.S.C.A. §§
1110, 1131; 38 C.F.R. § 3.303(a) (1991). For a service
connection finding in September 1991, there had to be medical
evidence in the record of a current disorder. In the absence
of proof of a present disability, there was no valid claim
presented. See Brammer, supra.
As the competent medical evidence in 1991 ruled out a
psychiatric disorder, the Board cannot now deem the Board's
September 1991 denial of service connection CUE. See
Brammer, supra. Indeed, the veteran has not identified any
specific finding or conclusion in the September 1991 Board
decision which was undebatably erroneous. The record does
not reveal any kind of error of fact or law that, when called
to the attention of later reviewers, compels the conclusion,
to which reasonable minds could not differ, that the result
would have been manifestly different but for the error. In
fact, it was reasonable to find in September 1991 that the
preponderance of the evidence indicated that, despite the
veteran's life difficulties, the medical evidence indicated
that he did not have a current psychiatric disorder. See
38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.
Accordingly, as there is no evidence that the correct facts,
as they were known at the time, were not before the Board, or
that the statutory or regulatory provisions extant at the
time were incorrectly applied, the decision of the Board,
dated in September 1991, which denied service connection for
an acquired psychiatric disorder, was not clearly and
unmistakably erroneous.
The Board notes that evidence developed after the Board's
September 1991 decision is not for consideration in the
determination of whether there was CUE in the September 1991
Board decision. As such, the medical evidence dated after
September 1991, which supports the veteran's claim to a post-
service psychiatric disorder, cannot be considered within the
strict confines of our analysis and decision making here.
See 38 C.F.R. § 20.1403.
In summary, the criteria for a finding of CUE have not been
met, and the motion must be denied.
ORDER
The motion for revision of the September 1991 Board decision
on the basis of CUE is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs